Freedom of Speech Inquiry

Submitted To:

Parliamentary Joint Committee on Human Rights

On 8 November 2016, the Attorney-General referred to the Parliamentary Joint Committee on Human Rights for inquiry and report, whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (including sections 18C and 18D) impose unreasonable restrictions on freedom of speech; and whether the complaints-handling procedures of the Australian Human Rights Commission should be reformed.

Liberty Victoria has made a submission to this Inquiry.

There are two fundamental reasons why Liberty is committed to the value of freedom of speech. First, we believe that freedom of speech is essential for the maintenance of democracy and effective participation in it. Citizens cannot participate effectively in democracy unless they have a reasonable understanding of political issues and problems. So, open debate about political and governmental affairs is essential.

Secondly, freedom of speech is crucial to the pursuit of truth. Society will more effectively ascertain accurate facts and valuable opinions in an atmosphere of free and uninhibited discussion, criticism and debate.

It is also well accepted, however, that freedom of expression should, in certain circumstances, be limited. So, as the jurisprudence around freedom of speech has developed, a number of reasonable limits have been identified. Freedom of speech may be limited, for example, in the interests of national security, public order, for the proper enforcement of the law, public health and public morality.

Read our full submission below. Our recommendations are:

That the words ‘offend’ and ‘insult’ be removed from S.18C of the Racial Discrimination Act 1975.

That in S.18D, the words ‘public comment done reasonably and in good faith’ be replaced with the words ‘in good faith and the absence of malice’.

That a new offence be created within Part II of the RDA to the effect that it will be ‘an offence for a person to engage in speech that constitutes racial hatred, ridicule or contempt against a person or group on the ground of their race’.

Section 46P of the Act should be amended to provide that a complaint must be in writing. In the complaint, a complainant should be required to set down the relevant facts upon which it is alleged that an act of unlawful discrimination has occurred.

Section 46P of the Act should be amended to provide that, prior to being accepted by the Commission, a written complaint must state facts with respect to an alleged act of discrimination that, in the opinion of the President of the Commission or his or her authorised delegate, are sufficient to found a prima facie case of discrimination.

Section 46PO of the Act should be amended to provide that if a complaint has been dismissed by the President, or his or her authorised delegate, on the grounds set down in s.46PH(1)(a)–(g), an application for review of the decision may not proceed in the Federal Court or the Federal Circuit Court without the Court’s leave.

To avoid further instances of unjust and indefensible delays in the Commission’s investigative and conciliation processes, the budget cuts made to the AHRC in the Federal Budgets in 2014-2016, should be reversed.

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